Appellant insists that this is a case on circumstantial evidence, and that the court erred in refusing to submit the case in his charge to the jury, on that theory. For this refusal the charge was excepted to.
Appellant was indicted for selling intoxicating liquor to Moore. Moore's testimony showed much familiarity with whisky. He swore repeatedly and positively that he arranged to buy whisky from appellant; that he did buy it from him and pay therefor. He said that later in meeting an officer he broke the bottle of whisky and spilled its contents, but that he smelled same. We quote from his testimony: "I did not touch this liquor I bought. I did not even uncork the bottle. I know it contained whisky. I know it was whisky. When I broke it it smelled like whisky. * * * I know the contents of that bottle were intoxicating." This is positive testimony. The court did not err in his refusal to instruct the jury as desired by appellant.
The motion for rehearing is overruled.
Overruled.